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The Mormon Question
by Prof. Sarah Barringer Gordon
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1. “Extract from a letter of brother Geo. Q. Cannon to Pres. J. Taylor dated Washington 19 Mch,” vol. 5, March, 1878, George Reynolds Journal, vols. I, 3- 6, Latter-day Saints Historical Archives.

2. As the correspondence of George Cannon reveals, he was determined that “we should have strong councel [sic].” (letter from George Q. Cannon to President John Taylor, 11 March, 1878, quoted in Reynolds Journal, vol. 5, March 1878). Cannon asked someone he referred to as “our Friend” for a recommendation of “first class and at the same time moderate [sic] priced lawyer.” (“Extract from a letter of brother Geo Q. Cannon to Pres J. Taylor”) Almost certainly this friend was Philadelphian Thomas L. Kane, longtime ally of the Mormons, negotiator of the truce in the Mormon War. See Albert L. Zobell Jr., Sentinel in the East: A Biography of Thomas L. Kane (Salt Lake, 1965); Leonard J. Arrington, “’In Honorable Remembrance’: Thomas L. Kane’s Service to the Mormons,” Task papers in LDS History: no. 22 (Salt Lake, 1978).

3. “Extract from a letter of brother Geo. Q. Cannon to Pres. J. Taylor.” On Devens, see John Codman Ropes, “Introductory Memoir” to a collection of Devens’s public addresses, Orations and Addresses on Various Occasions Civil and Military (Boston, 1891); obituary, American Law Review 25 (1891); 255; and obituary, Massachusetts Reports, vol. 152 (1891), 608.

4. On Reconstruction, see Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York, 1988), 564-601; Laura F. Edwards, Gendered Strife and Confusion: The Political Culture of Reconstruction (Urbana, Ill., 1997).

5. Bradwell v. Illinois, 83 U.S. (16 Wall.) 36 (1873), and The Slaughter-House Cases, 16 Wall. 36, 130 (1873) decided on the same day, decimated the theory that the “privileges and immunities” clause of the Fourteenth Amendment would provide new constitutional rights for all citizens. See also Paula Brandwein, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (Durham, N.C., 1999), 61-95.

6. In Barron v. Mayor and City of Baltimore, 7 Pet. 243 (1833), Chief Justice Marshall held that the Bill of Rights did not apply to disputes between individuals and states, thus effectively foreclosing litigation on questions involving the first nine amendments to the Constitution until after the Civil War. See also Permoli v. First Municipality of New Orleans, 44 U.S. (3 How.) 589 (1845) (applying holding of Barron to religion clauses of the First Amendment).

7. Brief of the Plaintiff in Error, Reynolds v. United States, 98 U.S. 145 (1879), 55.

8. Scott v. Sandford, 60 U.S. (19 How.) 393, 446, 450-51 (1857).

9. For contemporary attacks on Taney and the Court, see Charles Warren, The Supreme Court in American History, 3 vols. (Boston, 1923), 3:1-42. See also Maxwell Bloomfield, “The Supreme Court in American Popular Culture,” Journal of American Culture 4 (1982); 3. For support of the opinion after the war, see, for example George Graham Vest, Confederate official during the Civil War, Democratic senator from Missouri after the war, and counsel for the Mormon Church in Murphy v. Ramsey, 114 U.S. 15, 45 (1885), maintained that Dred Scott was written in “letters of gold; letters which declare the essence of the Constitution and the rights of every American citizen.”(CR, 47 Cong., 1 sess., 1158 [15 February 1882]). On Southern Democrats’ defense of the Mormons, see David Buice, “‘A Stench in the Nostrils of Honest Men’: Southern Democrats and the Edmunds Act of 1882,” Dialogue 19 (1982): 106.

10. William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Mass., 1988), 110-147; Warren, Supreme Court in United States History, 3:261-69.

11. Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (Cambridge, Eng., 1998), 58.

12. Brief of the Plaintiff in Error, Reynolds v. United States, 53-54.

13. Ibid, 54.

14. Ibid

15. The oral argument in the Reynolds case is reported in the New York Times, 15 November 1878, p. 4, col. 7.

16. Juanita Brooks, The Mountain Meadows Massacre, rev. ed. (Norman, Okla., 1962); John D. Lee, Mormonism Unveiled; Or The Life and Confessions of the Late Mormon Bishop, John D. Lee (St. Louis, 1877); David L. Bigler, Forgotten Kingdom: The Mormon Theocracy in the American West, 1847-1896 (Spokane, Wash., 1998), 159-80, 308-09. On the antipolygamist theory that Young sacrificed Lee, see Robert N. Baskin, Reminiscences of Early Utah (n.p. 1914), 136-37. For the ongoing currency of tales of avenging Danites in non-Mormon popular culture, see Arthur Conan Doyle, A Study in Scarlet (London, 1887).

17. The Slaughter-House Cases; Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875); Bradwell v. Illinois, 130.

18. On pro-marriage rhetoric after the Civil War, see Laura F. Edwards, “‘The Marriage Covenant Is at the Foundation of All Our Rights’ The Politics of Slave Marriages in North Carolina after Emancipation,” Law and History Review 14 (Spring 1996): 81-124. See also Stanley, From Bondage to Contract, 1-35.

19. The quoted language is from The Slaughter-House Cases, 68.

20. On marital irregularity in the nineteenth century, see Beverly Schwartzberg, “Grass Widows, Barbarians and Bigamists: Documenting and Describing Marital Irregularity in Nineteenth-Century America” (unpublished manuscript on file with author); Hendrik Hartog, in Man and Wife in America, a History, (Cambridge, Mass., 2000) 242-86; Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America, (Chapel Hill, N.C., 1985) 129-32. Compare Jill Elaine Hasday, “Federalism and the Family Reconstructed,” University of California at Los Angeles Law Review 45 (June, 1998): 1297-1400.

21. Reynolds v. United States, 98 U.S. 145 (1879). The list of such disapproved (or outright overruled) cases is extensive, including but not limited to The Slaughterhouse Cases, Bradwell, Minor v. Happersett, Plessy v. Ferguson, 163 U.S. 537 (1896), and Lochner v. New York, 198 U.S. 45 (1905).

22. For examples of pro-Mormon response see, Henry Reed, Bigamy and Polygamy: Review of Reynolds v. U.S. (New York, 1879), 20, which argued that the opinion was an example of “popular passion and sentimental fanaticism.” Edwin B. Firmage and Richard Collin Mangrum (Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-Day Saints, 1830-1900 [Urbana, Ill., 1988], 153- 56) maintain that the decision was misguided and shortsighted. On the Court in the late nineteenth century, see, e.g., William E. Nelson, Roots of American Bureaucracy, 1803-1900 (Cambridge, Mass., 1982); Michael Les Benedict, ALaissez-faire and Liberty: “ Re-evaluation of the Meaning and Origins of Laissez-faire Capitalism,” Law and History Review 3 (1985), 293-332; Robert W. Gordon, “Legal Thought and Legal Practice in the Age of American Enterprise,” in Professions and Professional Ideologies in America, ed. Gerald L. Geison (Chapel Hill, N.C., 1983); Charles W. McCurdy, AJustice Field and the Jurisprudence of Government-Business Relations,”JAH 61 (December 1975): 970-1005; Morton J. Horwitz, The Transformation of American Law, 1879-1960: The Crisis of Orthodoxy (New York, 1992); Benjamin R. Twiss, Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (Princeton, N.J., 1942); J. Willard Hurst, Law and the Conditions of Freedom (Madison, Wisc., 1950); and Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (Gloucester, Mass., 1960).

23. Norma Basch, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley, Calif., 1999), 50. Few historians have studied the Reynolds opinion in depth. The exceptions are Carol Weisbrod & Pamela Sheingorn, “Reynolds v. United States: Nineteenth-Century Forms of Marriage and the Status of Women,” Connecticut Law Review 10 (1978); Orma Linford, “The Mormons and the Law: The Polygamy Cases Parts 1 and 2,” Utah Law Review 9 (1964); (1965); Firmage and Mangrum, Zion in the Courts; and Nancy L. Rosenblum, “Democratic Sex: Reynolds v. U.S, Sexual Relations, and Community,” in Sex, Preference, and Family: Essays on Law and Nature (New York, 1997), 63-85.

24. Reynolds v. United States 98 U.S., 147-49.

25. Ibid, 161-162.

26. Kenneth R. Bowling, “A Tub to the Whale: The Founding Fathers and the Adoption of the Federal Bill of Rights,” Journal of the Early Republic 8, no. 3 (1988); Arlin M. Adams and Charles J. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses (Philadelphia, 1990).

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